Citation Nr: 1322753 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-38 459 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUE Entitlement to a disability rating in excess of 30 percent for a mood disorder with depressive features, to include anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from June 1990 to June 1994. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2010 rating decision in which the RO continued the 30 percent disability rating for mood disorder with depressive features, to include anxiety disorder. In February 2010, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in August 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2010. In March 2011, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the record reveals that further RO action on the claim on appeal is warranted. The Veteran currently asserts, to include during his March 2011 Board hearing, that his service-connected mood disorder with depressive features, to include anxiety disorder, has worsened since his last VA examination in August 2009. To ensure that the record includes sufficient medical evidence to properly evaluate the disability under consideration, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed. See 38 C.F.R. § 5103A (West 2012); 38 C.F.R. § 3.159 (2012); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). Accordingly, the RO should arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claim for increase. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As regards VA records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Manchester, New Hampshire from November 8, 2004 until August 18, 2009. Although the Veteran reported, during his March 2011 Board hearing, that he last received treatment in August 2009, more recent records from this facility may still exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Manchester VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated from August 18, 2009, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Additionally, the Board notes that the Veteran never received notice of the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA) for an increased rating for mood disorder with depressive features, to include anxiety disorder. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Therefore, the RO should, through VCAA-compliant notice to the Veteran and his representative, give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any pertinent, outstanding private medical records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim for increased rating should include consideration of whether any "staged" rating (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate. Accordingly, this matter is hereby REMANDED for the following actions: 1. Obtain from the Manchester VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated from August 18, 2009. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter notifying the Veteran of the duties imposed by the VCAA for an increased rating for mood disorder with depressive features, to include anxiety disorder. Request that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records. Also, clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies, to include psychological testing, if warranted, should be accomplished (with all results made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; delusions and/or hallucinations; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score that represents the level of impairment due to the Veteran's mood disorder with depressive features, to include anxiety disorder, and an explanation of what the score means. Based on review of the Veteran's documented medical history and assertions, the examiner should also indicate whether, at any time since the August 18, 2009 VA examination (the date the RO obtained new evidence regarding the service-connected mood disorder with depressive features, to include anxiety disorder), the Veteran's service-connected psychiatric disability has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. In rendering the requested opinions, the examiner should specifically consider and discuss all pertinent lay and medical evidence of record pertinent to the period in question, to include the March 2011 Board hearing transcript. The examiner should set forth all examination findings (and testing results, if any) along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim on appeal. If the Veteran fails, without good cause, to report for the VA examination scheduled in connection with the claim, in adjudicating the claim for increase, the RO , the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim in light of all pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claims in April 2012) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, along with reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2012).